A mother who had a baby through a surrogate has launched landmark legal action
for the right to paid maternity leave.

The woman, who has been allowed to remain anonymous by judges, was refused the leave by her employer when she became a mother.

She is suing her employer, alleging sex and maternity discrimination, and has taken her case to the European Court of Justice (ECJ) to decide whether the British laws comply with European Union directives, which could force a change in the rules. The court is expected to make a decision later this year.

An estimated 70 women became mothers through surrogates last year and campaigners say they deserve the same rights as other women.

Natalie Gamble, an expert in fertility law, said that only mothers who were pregnant or those who have adopted are entitled to take maternity leave under the existing rules, which left “a gap” in cases where mothers used surrogates.

Stuart Walne, a spokesman for Surrogacy UK, a support organisation, said the rules created an added “trauma” for these women, who faced disputes over paid leave.

The woman started working as a midwife sonographer for her employer in July 2001. Her baby was born through a surrogate mother in August last year and the woman began breastfeeding the child soon after the birth, something that can be induced through hormone treatments and drugs.

Her employer offered a career break, reduced hours and unpaid leave, but refused to give her maternity leave, so she went to an employment tribunal. It ruled that the issue had to be decided by the ECJ.

A spokesman for the Department for Business, Innovation and Skills said that there were no plans to change the law regarding people who have a child through surrogacy.

John Read, an employment law expert at XpertHR, a human resources website, said: “Under UK law, mothers who have a baby via a surrogate mother and assume responsibility for it under a parental order are not entitled to the same rights and protection, for example regarding discrimination, as mothers who give birth or adopt.

“It’s unclear whether the EU legislation from which these rights derive covers surrogate mothers, and the tribunal will ask the ECJ to clarify this. If the ECJ decides that surrogate mothers are covered, our courts will need to interpret UK law to give effect to this, until Parliament amends the legislation.

“It is extremely unusual for a tribunal to make a referral to the ECJ, but the tribunal found no case law to help it determine the issue.”